Racism is still rampant in South Africa. But is criminalising hatred the answer?

Recent events in South Africa show that it is a society still grappling with its racist history, 23 years after apartheid officially ended. Combating hatred is an ongoing project.

The state’s most recent response to the problem has been a draft statute that criminalises hate crimes and hate speech. The Prevention and Combating of Hate Crimes and Hate Speech Bill comes a decade after the Hate Crimes Working Group and other parties started lobbying for specific legislation that prevents, monitors and adequately prosecutes hate crimes in South Africa.

Hate crimes currently don’t exist as specific crimes in South Africa. Instead, where a crime is motivated by discrimination or intolerance, it’s possible for the prosecution to argue for an increased sentence.

Hate speech is prohibited in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act. The act allows for cases of hate speech to be heard by the Equality Court. Examples of cases the court has successfully handled include Economic Freedom Fighters’ leader Julius Malema’s “Kill the Boer” case and the Penny Sparrow case. But there’s a sense that the act remains ineffective as its civil sanctions don’t have sufficient preventative powers.

At its foundation the bill gives effect to the constitutional rights in sections 9 and 10 of the Bill of Rights. These protect every person from unfair discrimination and recognise the inherent right of dignity for all.

But is criminalisation the right way to go? The growing incidents of racism on social media suggest that the country needs to ensure that racism has consequences. The question is whether those consequences ought to be criminal sanctions. This is an important debate that needs to be carefully considered.

Hate crimes

It’s important to distinguish between hate crimes (section 3) and hate speech (section 4) prohibited under the bill. They are distinct classes of offences.

Hate crimes are a contested concept. But it’s generally accepted that a hate crime is any offence recognised in law (known as the “base offence”) that is motivated by prejudice, bias or intolerance on the basis of race, gender, sex, ethnic or social origin. It also covers prejudices based on colour, sexual orientation, religion, belief, culture, language, birth and, disability, HIV status, nationality, gender identity, albinism, or occupation or trade.

The notion of hate crimes as a distinct category of crimes departs from the general principles of criminal law. These principles render the motive behind a crime irrelevant to whether there was intention to commit that offence. Although someone could be convicted for a hate crime rather than an “ordinary” crime as envisaged by the bill, the motive extends only to the aggravating factor and not to the base crime.

Therefore the criminalisation of hate crimes in the bill doesn’t necessarily create a new set of offences. What it does is categorise these offences differently, taking the aggravating factors into account in its definition. The primary purpose here is to ensure that the hate factors are taken into account by the police, the National Prosecuting Authority as well as judges and magistrates. This doesn’t always happen.

Hate speech as crime

The clause in the new bill that seeks to criminalise hate speech was only recently added. It’s been criticised as a knee-jerk reaction to recently publicised racism incidents. Its inclusion risks delaying the bill’s final promulgation into law because the criminalisation of the hate speech provision wasn’t adequately debated.

The strongest criticism of the bill is that it threatens freedom of expression protected under section 16 of the Constitution. This section gives everybody the right to freedom of expression unless that constitutes

propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The bill has been criticised for going further, creating the possibility that even the works of comedians and satirists could be criminalised. This is because it not only criminalises communications that could incite others to commit harm or to stir up violence against a person or group of persons, it also includes communications of contempt for, or ridicule of, a person or group of persons.

It is this last category of ridicule and contempt that narrows freedom of expression beyond the internal limitation in the constitution.

Freedom of expression is a right that deserves protection for democracy to thrive. But, like any other right in the Bill of Rights, it’s not unlimited and ought to be balanced against other rights. This means expressions that infringe someone’s dignity (for example) may not be protected under freedom of expression. Stand-up comedians and satirists often take advantage of South Africa’s different race and cultural groups as the basis of jokes. This should not be censored – but it should also not be beyond reproach either.

The offence of hate speech requires intention to cause harm thus already limiting the situations that could fall within its definition. Each instance will have to be decided on a case-by-case basis.

An effective mechanism?

A strong argument against the criminalising of hate speech is that it won’t change people’s prejudices, it will simply stop people from expressing them. It has also been argued that the only way to truly change society is to undo the structural inequalities that persist as a legacy of colonialism and apartheid.

On the other hand, criminal law is a primary means of setting the social standards that are acceptable in a society. There is utility in labelling conduct criminal. But punishment for a crime need not include imprisonment. The sentence for hate crimes allows for correctional supervision at a presiding officer’s discretion.

The sentence prescribed for hate speech only includes a fine or imprisonment. Community service or a fine would be more appropriate sentences if we understand criminalising hate speech as a need to reform society rather than impose punitive measures.

The law is a powerful tool in setting acceptable social norms. But it needs to be used judiciously.